How to create activist judges

September Lau and Kimberly Graham make the case against a Republican effort to pack Iowa courts with conservatives. -promoted by Laura Belin

Ever since the 2009 Iowa Supreme Court decision legalizing same-sex marriage, conservative groups and legislators have attempted to reign in what they describe as an “activist” court. Never mind that that opinion, Varnum v. Brien, was a deliberate and thoughtful walk through equal protection analysis. Conservatives simply didn’t like the decision because it wasn’t the result they wanted.

After Varnum came the 2010 judicial retention elections. Out-of-state organizations opposed to same-sex marriage poured money into a campaign to remove three Supreme Court justices. The justices, models of professionalism, did not raise campaign money and generally refrained from making public statements in their own defense. The justices were not retained. (Two of those justices had been appointed to the appellate courts by Republican Governor Terry Branstad.)

In addition to these removal campaigns, 2010 also saw a lawsuit on behalf of a group of Iowans against the members of the State Judicial Nominating Commission. The plaintiffs claimed their right to equal protection in the right-to-vote context was violated because half the commission’s members were elected by Iowa attorneys (as opposed to being appointed by an elected official). A U.S. District Court and later a panel of the Eighth Circuit Court rejected the challenge, noting that the commission’s “sole function is to select the most qualified candidates for judicial appointments and forward the names of these candidates to the Governor for a final appointment.”

The Eighth Circuit concluded that “Iowa’s legitimate interest in selecting the most qualified judges encompasses an interest in having the views and expertise of Iowa’s attorneys represented on the Commission to assist with this selection.” The Court “further conclude[d] the State’s decision to allow members of the Iowa Bar the opportunity to elect seven of their peers to serve as the Commission’s attorney members bears a rational relationship to this legitimate interest.”

Fast-forward to 2018, when the Iowa Supreme Court rejected part of a state law requiring women to wait 72 hours before obtaining an abortion, holding that the provision violated both equal protection and due process. The reaction of conservative groups was predictable. In appearances before lawmakers, representatives from Iowa Right to Life criticized “unelected activist judges” who “usurp[ed] their role.” The director of Life Ministries at Lutheran Family Service accused the Court of rendering an “inappropriate ruling” that “intentionally tied legislators’ hands.”

The reaction of Republicans in the legislature was also predictable. The judiciary committees in both chambers of the Iowa General Assembly have now advanced bills that would remove the elections used to select attorney members of the commissions.

Under this legislative change, the governor would appoint eight attorney members to the State Judicial Nominating Commission, eliminating the role of the Iowa Bar. Political appointees would also replace the Bar-elected members on District Nominating Commissions. Judges and justices would no longer chair the various nominating commissions. The change would immediately dissolve the current makeup of judicial nominating commissions. [Editor’s note: Republicans on the Iowa House Judiciary Committee advanced the bill on February 20 with an amendment that would preserve attorney elections for half the members of regional nominating commissions, but not for the State Judicial Nominating Commission.]

Why is this shake-up necessary? Allow Senate Majority Leader Jack Whitver to tell you: “Frankly, over 20 years-plus there have been a lot of decisions that legislators feel conflicted with what they wanted to do or their intent.” Earlier this year, he said, “It’s just a matter of the accumulation of dozens and dozens of activist rulings from the Court, and trying to curb some of that.”

Note how the sentiment is not that the commission is forwarding unqualified or incompetent candidates. No, the expressed concern is that the courts are not letting the current crop of Republican legislators do what they want. Having a co-equal branch of government that refuses to act as a rubber stamp can certainly be frustrating when you don’t get your way, but that’s the idea behind our system of checks and balances.

Attempts to undermine the independence of the judiciary are not limited to Iowa. In 2018, the Brennan Center for Justice documented 60 bills in 18 states that would have politicized or undermined the independence of state courts. As of February 8, 2019, at least 19 states were considering 32 bills to diminish the role or independence of courts. The Brennan Center notes that, even this early in 2019, “one pattern has already emerged: Partisan elected officials are seeking more power over how judges are selected, particularly in states that currently use independent nominating commissions to help pick judges.” Sound familiar?

The breadth of the effort to undermine state courts should not come as a surprise. Groups such as the Judicial Crisis Network and Americans for Prosperity are actively campaigning to remove judges they see as obstacles to their priorities. This is of a piece with how outside think-tanks and special interests push for legislation that may not be in keeping with the real needs and desires of Iowans. But it is especially disturbing in this context: The Courts are supposed to be as neutral, fair and impartial as possible. They are not supposed to be beholden to special interests, corporate donors, or partisan politics. The independence of the judiciary is crucial to its function.

Should these bills become law, the result will be increased politicization of the judicial selection process. The proposed commission will still be comprised of a significant number of lawyers, but they will be chosen by elected officials instead of members of the Iowa bar. When we attorneys vote for someone to become a member of the state judicial nominating commission, we are not necessarily privy to their politics. We can research them and the cases they litigated, but in my estimation, the overarching concern for me and my colleagues is simply whether they will fairly and thoughtfully consider all the candidates for a judicial vacancy and put forward the candidates they believe demonstrate competence, impartiality, respect, fairness, and integrity.

Having attorney members of the commission chosen by partisan elected officials changes the calculus (in a way that is obviously meaningful to proponents of the change). Supporters of the bills may tout notions of “accountability” as the driving factor for the change, but prior statements of interested parties and lawmakers belie the truth: they want this change because they feel hamstrung by the courts. They want more partisan control, and less judicial independence. They want more “judicial activism,” not less. And they want it in the current moment, while they have the majorities to shape these new commissions for years to come.

And, contrary to arguments you may have heard, our current judicial nomination structure has no accountability problem. When judges and justices are appointed by the governor, they sit for a retention election after one year and regularly thereafter (every six years for District Court judges, every eight for Supreme Court justices). Iowa State Bar Association members can provide reviews of all the judges and justices up for retention and those assessments are made available to the public prior to the election. If a judge or justice acts unethically, they can be held accountable by the Judicial Qualifications Commission. If a party disagrees with a judge’s ruling, he or she can appeal to a higher court. And if the legislature does not like a particular decision of the Iowa Supreme Court, it can either change the law or move to amend the Iowa Constitution.

We rely on an independent judiciary to protect the rights of Iowans. What one person calls an “activist” court will invariably be described by another person as a court that protected their individual liberties and dignity. If our courts are not adequately insulated from political interference, our judiciary cannot serve as a check and balance on the legislative and executive branches. The Iowa Bar has long been a layer of insulation that has played a vital role in ensuring the independence, integrity, impartiality, and competence of our judiciary.

The Eighth Circuit recognized the particular expertise of attorneys in this regard:

Undoubtedly, the State of Iowa has a legitimate interest in selecting the most highly qualified candidates to serve as judges on the Iowa Supreme Court and the Iowa Court of Appeals. Candidates must be members of the Iowa Bar, […], and are generally expected to have strong credentials, recognized integrity, and a distinguished legal career. Candidates must also demonstrate a commitment to promoting and upholding the independence, integrity, and impartiality of Iowa’s judiciary, if appointed. […]

Thus, who better-suited to evaluate the credentials of judicial aspirants than other members of the Iowa Bar? Attorneys will typically be more familiar with the judicial candidates than the general public. They will be in a better position to evaluate each candidate’s qualifications and determine who has “the legal acumen, the intelligence, and the [judicial] temperament to best serve the people of [Iowa].

Our judicial selection system is the envy of many for a reason: it results in the selection of qualified and public-service oriented judges and keeps politics out of the judicial branch as much as possible.

Due to a loophole in the state constitution, the legislature can change the way Iowa nominates and selects judges and justices. But it shouldn’t.

September Lau is a retired attorney from Des Moines. Kimberly Graham is an attorney for kids in juvenile court, and a collaborative divorce attorney. Both authors have worked with Iowa judges for many years.

About the Author(s)

Ember Lau

  • Iowa Bar as Filter for Judicial Candidates

    There are several fundamental problems with having the Iowa Bar serve as a screen for nominees and this process as it now functions:

    1) Potential or Actual Conflict of Interest. The Iowa bar and its members are the same people that are presenting cases before the judges. So having them make nominations can lead to influence peddling within the profession. We already have seen problems within the profession here in Iowa and nationally. Lawyers are not got at regulating lawyers just as doctors are not good at regulating doctors. Or any profession in general. It’s economics and self interest above the public good.
    2) The Iowa Bar is not an elected body. So having this group play an outsized role in the nomination of judges doesn’t mean we will have a less politized process, it just means the politics may have more to do with the politics of litigation which can impact you and me if we find ourselves in the judicial system.
    3) If the objective of the process, is selecting more “center” judges, then a better solution is senate confirmation by a super majority of the Iowa senate. This would also eliminate the inefficiency of an application process that requires applicants to spend a lot of time applying for a position that may have a very low probability of success.
    Thank you.

    • the Iowa State Bar Association

      does not screen applicants. Attorneys vote for the judicial nominating commission members. Those who vote must be admitted to the bar (i.e. allowed to practice law in Iowa), but they do NOT have to be members of the Iowa State Bar Association. Republicans have tried to confuse the issue by claiming the ISBA names members of the commissions.

      • Attorneys

        Thanks for the clarification. I don’t think having attorneys making up half the commission which selects the finalists is as good as having an elected body at a sufficiently high number confirm the nomination by a governor. I like our federal system which was modeled after my home state of Massachusetts. The unfortunate recent history of the US Senate eliminated the supermajority in the Senate by rule. If we are going to change this process, and I’m not in favor of the governor picking more commission members, I think we toss it out entirely for the reason I mentioned and make it a nomination and confirmation process. I don’t like the idea of a select number of lawyers having undue influence in nominating colleagues in their profession. I think there are better ways to identify candidates that have the personal and legal qualities we would like to see without the potential negative baggage and the “campaigning” that goes on under our current system with applicants and nominees running around the state to meet and greet “important people.” If we considered such a system in 1959/61 it may be time, again, to look at the benefits of such an approach vs. what we have now or what is being proposed, which is a step backward, IMO..

    • we'd need to amend our state constitution

      to set up a process involving Iowa Senate confirmation. That approach was considered and rejected in 1959/1961, when state lawmakers approved the system we have now.

  • This reminds me of when the Director of the Iowa Department of Natural Resources...

    …stopped being selected by the Iowa Conservation Commission, as it was called back then, and became a gubernatorial appointee. The very same argument was used, that the change was a great idea because it would make the DNR more responsive to voters.

    What has actually happened, of course, is that the DNR has become far more political. And in an increasingly-red state, the results are predictable. We didn’t get into our current water-quality mess by accident. And Iowa deer management is now political to the point that the actual scientific data about how many deer per square mile allow the landscape to stay healthy is pretty much irrelevant.